Griffin on Balkin on Constitutional Theory

This is a review of Jack Balkin’s two recent books, Constitutional Redemption: Political Faith in an Unjust World (2011) and Living Originalism (2011). I concentrate on understanding Balkin’s encompassing vision of American constitutionalism along two dimensions – his theory of constitutional change and his theory of constitutional “construction.” I applaud Balkin’s historicist approach to constitutional change, although I am skeptical of his treatment of the New Deal and a crucial aspect of his argument with respect to the adoption of the Constitution. On matters of interpretation or “construction,” I react against Balkin’s denial of the relevance of judicial supremacy and have a more skeptical take on judicial review generally. I conclude that both of these books are well worth reading and Living Originalism, in particular, may well become a standard touchstone for constitutional theory.